I am a senior research fellow at the Mercatus Center at George Mason University where I work with the Technology Policy Program. I cover technology, media, Internet, and free speech policy issues with a particular focus in online child safety and digital privacy policy issues.
I have spent two decades in the public policy research community. I previously served as the President of The Progress & Freedom Foundation, the Director of Telecommunications Studies at the Cato Institute, a Senior Fellow at The Heritage Foundation as a Fellow in Economic Policy, and a researcher at the Adam Smith Institute in London.
I am the author or editor of seven books on diverse topics such as media regulation and child safety issues, mass media regulation, Internet governance and jurisdiction, intellectual property, regulation of network industries, and the role of federalism within high-technology markets. I earned a B.A. in journalism and political science at Indiana University, and received a M.A. in international business management and trade theory at the University of Maryland.
I also blog regularly at the Technology Liberation Front (http://techliberation.com) and can be found on Twitter at: @AdamThierer

The Twilight of Copyright?

Copyright is dying. Bit by bit – quite literally it turns out – copyright law is being undermined by the unrelenting realities of the information age: digitization, instantaneous copying, borderless transactions, user-generated content, and so on. Despite efforts to salvage it – including the hotly contested new “Stop Online Piracy Act” (SOPA) bill – there is no putting the genie back in the bottle.

This is troubling because copyright has served America well. It has helped artists and creators by granting them a tradeable right to market and monetize their works. In the process, it has spawned a vibrant marketplace of ideas and helped America become the leading exporter of expressive works on the planet.

Copyright has always been complicated and contentious, though. Because ideas can flow so freely, efforts to limit distribution raise challenging enforcement obstacles. How extensive are these rights? How long should protection last? Under what conditions can copyrighted works be modified, reused, or resold?

These challenges have been present since the dawn of copyright, but they have become increasingly intractable problems in the Internet era. Once digitized, bits of information – copyrighted or otherwise – can flow in a quicksilver fashion across the globe at the click of a button.

To some copyright critics, this is all fine and well. They are ready for copyright to go, seeing it as an unnecessary hindrance on the movement of information or, more simply, as unjust enrichment of large record and movie studios.

One can’t help but think some of the critics are simply serving as apologists for the ugly free-riding and mass piracy that is all too real on the Internet today. And despite all the derision of “Big Content,” the reality is that copyright has empowered countless individual creators and given them the right to directly negotiate with big studios or try to make it on their own. If copyright falls, they’ll lose much of that bargaining power. That could also hurt the incentive to create and distribute expressive works, which would diminish public enlightenment and enjoyment.

These normative considerations are increasingly moot, however. Copyright enforcement has become a never-ending game of regulatory Whack-a-Mole. Push down piracy in one area and it pops up somewhere else. No amount of legislating or regulating will likely reverse this situation.

We are now witnessing copyright’s last stand with large content interests proposing something akin to the nuclear option of enforcement: mucking with the underlying architecture of the Internet. In an attempt to tackle offshore pirate sites and other “rogue” services, SOPA would require online operators to block services at the domain name system level and search engines would need to take steps to prevent such services from even being found in organic search results. Payment processors and ad networkers would also be roped into this enforcement scheme in an attempt to block the flow of funds to sites that supposedly facilitate copyright infringement. SOPA critics fear this could chill a great deal of legitimate speech on social media sites where incidental or accidental infringement could take place.

Regardless, no amount of intermediary deputization or meddling with the DNS or extraterritorial enforcement efforts will likely get this problem under control. This cat-and-mouse game is being played on a scale, and at a speed, that is unprecedented and growing.

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If copyrights are not enforced, there is less reason for content creators to commit the sometimes significant resources needed to create it.

It is now legal to post videos of cartoons on the web, as long as the image is reversed. So if you go to youtube, you can see the latest cartoons with no compensation to the copyright holder. Why should the creators of such content bother creating it if it is stolen.

I think a ‘by-any-means-necessary’ approach to enforcement, is necessary. People not earning from copyright theft feel the pain, in such a way that a few arrests is really a plausible avenue. You feel victimized, because you are. How must they earn if it keeps on happening? And must it be made more difficult that in already is? I say keep it simple, and treat it as a crime – enforce the law already there, and arrest after investigation and proof has been obtained.

You also have to realize that many people who pirate stuff wouldn’t buy it anyway.

For instance, people used to copy cassette tapes back in the days.

Plus, a lot of companies may have smaller “market share” not because of piracy, as they would like to believe. The truth is there are many more options available.

Unlike in the past, it’s quite possible to create world class intellectual property right from one’s bedroom. Fighting pirates is just one part of the process – in the end this will not be the answer to increasing profits for all parties involved.

What will ultimately happen, after the endless legal battles and squabbling, is that content providers will come up with a digital model that allows them to get as much revenue as they can for their content – while accepting that some piracy is going to be inevitable. Look at the recent study on American digital piracy habits, which pointed out that while 70% of young Americans have pirated content, most are not “heavy pirates” with thousands of songs, etc. Give these people the ability to buy the content at relatively low prices, and they’ll oblige you most of the time.*

In the mean-time, we are seeing some new innovations in cross-subsidizing content with advertising. Youtube is the premier example, where they’ve been developing a system that allows the rights-holders of a video/song/etc to get a cut out of the advertising revenue from ads done before the video . . . whether or not the video is being uploaded and played by themselves on their own channels.

* The downside of this is that the days of massive, one-time investments in content (such as today’s extremely high-budget movies) are probably going to go extinct (or shrink back in budget). They won’t be viable in a world where you have to charge a high per-unit price just to make back your investment.

To add to my point, think of it as “Loss Prevention”. If you’re a major store-owner, you try to set up measures so that you lose as little of your stock as possible to theft . . . but ultimately, some of it will happen despite your best efforts. You just try your best, and try to stay profitable.

we could all have a unique id assigned to us the individual…have it auto dated & timed….as an imprint in the internet db…that way retrieval would be simple..and fits into the sequence of events online….this is my first thought…

it is favorable to be acknowledged as the originator….when spark….the whole point to sharing is benefit…in commerce is monetary…in society is lifes experiences….and boy we have lots of those…ie…i personally have had a gazillion ideas in my lifetime…ive always wanted to be an inventor…..and somehow in all my sharing and thinking…and you know we all have our convictions….and…..predominately….everyone has impleted all of them….it has turned out good …but..in commerce …no money 4 me…..wah wah..why couldn’t it have brought me some fortune over the course….which brings us to these “protective” measures….that cost too much….could it ever be possible to get a patent through a system like getting a fishing/hunting license….as simple as that….using the unique id system…

You are certainly right when you say “the reality is that copyright has empowered countless individual creators and given them the right to directly negotiate with big studios or try to make it on their own. If copyright falls, they’ll lose much of that bargaining power. That could also hurt the incentive to create and distribute expressive works, which would diminish public enlightenment and enjoyment.”

But the derisive attitude toward “big content” is an extremely important in addressing the use and defensibility of copyright law.

Copyright is intended to reward creators for their creative efforts that are beneficial to the public- for a limited time.

The public is supposed to get two benefits from the copyright system- the well-known and respected incentive to produce, and the release of the copyrighted work to the public for use as it sees fit after the copyright term has expired.

As things are now, Big Content, which has generally bought their content, continuously lobbies congress to extend the term of copyright, depriving the public of its right to use as the copyright term tends toward eternity.

The average duration of copyright was about 30 years until about 1820, when it increased to about 40 years, with an 1831 law retroactively extending copyright term on existing works as well as new. This lasted until 1909, when copyright term was again increased retroactively and proactively to about 55 years. Which was once again increased with several laws from 1962-1974 that made the average duration 75 years. This was again superseded by the Sonny Bono Copyright act that retroactively increased copyright term to an average of 95 years for works created after 1923, and 105 years for those created after 1978.

This act also favors content owners rather than creators – a creator gets 70 years after their death, while a work-for-hire gives the corporation that ordered the work 120 years, or 95 years after publication.

So where, exactly, is the public benefit in having copyright term be a moving target at the service of major media companies?

Additionally, copyright law was altered to allow works in the public domain to be removed by legal technicalities- such as deciding that the film “It’s a Wonderful Life”, which entered the public domain in 1974, to be removed in 1993 on the basis that the film was a derivative work of the short story it was based on.

Secondly, major media companies have long been known to engage in soul-crushingly long and expensive legal battles with artists regarding whether works were owned by their creator or were works for hire.

Third, copyright law was changed to assume that an orphan work whose creator/owner cannot be located is still under copyright, preventing these works from being available to the public.

When copyright law is used to deprive the public rather than benefit the public, and is used as a money-making tool of huge corporations at the expense of the public through lobbying and bullying creators of works, it loses respect.

A critical element in defending copyright from those who would see it disappear, and from individuals who casually and occasionally pirate works, is to restore the element of fairness. If copyright law were truly balanced toward the benefits of creators, the public, and media companies, this would defang critics of copyright and lessen their influence in the public view.

As things stand, all copyright law, even its beneficial parts, are in danger due to its continuing skew in favor of Big Content. Any attempt to save copyright law to serve creators and the public in the future must address the fact that current copyright law does not serve creators and the public to the same degree as it does media corporations.

You are certainly right when you say “the reality is that copyright has empowered countless individual creators and given them the right to directly negotiate with big studios or try to make it on their own. If copyright falls, they’ll lose much of that bargaining power. That could also hurt the incentive to create and distribute expressive works, which would diminish public enlightenment and enjoyment.”

But the derisive attitude toward “big content” is an extremely important in addressing the use and defensibility of copyright law.

Copyright is intended to reward creators for their creative efforts that are beneficial to the public- for a limited time.

The public is supposed to get two benefits from the copyright system- the well-known and respected incentive to produce, and the release of the copyrighted work to the public domain for use by anyone after the copyright term has expired.

The entrance of a work into the public domain is an important contribution to the creation of new works, allowing new works to be created that incorporate, modify, expand, criticize, and examine those works in the public domain.

As things are now, Big Content, which has generally bought their content, continuously lobbies congress to extend the term of copyright, depriving the public of its right to use as the copyright term tends toward eternity.

The average duration of copyright was about 30 years until about 1820, when it increased to about 40 years, with an 1831 law retroactively extending copyright term on existing works as well as new. This lasted until 1909, when copyright term was again increased retroactively (to the late 1860s) and proactively to about 55 years. Which was once again increased with several laws from 1962-1976 that made the average duration 75 years. This was again superseded by the Sonny Bono Copyright act that retroactively increased copyright term to an average of 95 years for works created after 1923, and 105 years for those created after 1978.

This act also favors content owners rather than creators – a creator gets 70 years after their death, while a work-for-hire gives the corporation that ordered the work 120 years, or 95 years after publication.

So where, exactly, is the public benefit in having copyright term be a moving target at the service of major media companies?

Additionally, copyright law was altered to allow works in the public domain to be removed by legal technicalities- such as deciding that the film “It’s a Wonderful Life”, which entered the public domain in 1974, to be removed in 1993 on the basis that the film was a derivative work of the short story it was based on.

Secondly, major media companies have long been known to engage in soul-crushingly long and expensive legal battles with artists regarding whether works were owned by their creator or were works for hire.

Third, copyright law was changed to assume that an orphan work whose creator/owner cannot be located is still under copyright, preventing these works from being available to the public.

When copyright law is used to deprive the public and diminish creation of new works, rather than benefit the public and encourage creativity, and is instead used as a money-making tool of huge corporations through lobbying law-makers and bullying creators of works, it loses respect and legitimacy.

A critical element in defending copyright from those who would see it disappear, and from individuals who casually and occasionally pirate works, is to restore the element of fairness. If copyright law were truly balanced toward the benefits of creators, the public, and media companies, this would defang critics of copyright and lessen their influence in the public view.

As things stand, all copyright law, even its beneficial elements, are in danger due to its continuing skew in favor of Big Content. Any attempt to save copyright law to serve creators and the public in the future must address the fact that current copyright law does not serve creators and the public to the same degree as it does media corporations.